The State v. White
| Decision Date | 24 January 1927 |
| Docket Number | 27349 |
| Parties | The State v. Wilson White, Appellant |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Circuit Court; Hon. Frank Kelly Judge.
Reversed and remanded.
Alexander & Coffer for appellant.
North T. Gentry, Attorney-General, for respondent.
The defendant appeals from a judgment of the Circuit Court of Cape Girardeau County, rendered upon conviction of murder in the first degree. His punishment was assessed at life imprisonment in the penitentiary.
On the night of August 5, 1922, Frank Midkiff, Delbert Midkiff Walter Houck, John Biddy and, the State claims, Wilson White murdered and robbed John Green, a negro, who lived a few miles from Jackson, Missouri.
On that evening Frank Midkiff was seen about the streets of Jackson. He had a conversation with John Green in which he said it was time for Green to go home; that he might meet up with bad luck. Soon after he attempted to gather a gang apparently for some unlawful purpose. He approached Myron Egger and asked Egger to go along with him and get some easy money. Egger asked him what he was going to do and he refused to say. He had a similar conversation with August Sanders, who said he was going to a show. Frank said: "Don't go to the show; stay with us, we are going to get some easy money." Sanders asked, "What are you going to do, rob a bank?" Midkiff answered, "No." He had a similar conversation with Walter Houck. There were with him part of the time his brother, Delbert Midkiff, and John Biddy. Walter Houck joined him in the expedition; Sanders and Eggers declined to go. Biddy had a car and five men according to Houck's testimony; Frank and Delbert Midkiff, John Biddy, Walter Houck, and the defendant, Wilson White, drove to John Green's home. Green was not there at the time and they waited for his return. Frank Midkiff and Biddy hid behind the house. Delbert, Houck and White, according to Houck, hid behind the smokehouse. Green presently appeared, and as he approached his door Frank Midkiff struck him in the head with a hammer -- a blow which ended his life. Biddy then proceeded to take some money -- more than two hundred dollars -- off his person. It was later divided between the men. The facts as thus briefly stated more fully appear in the other cases that have come before this court. [State v. Delbert Midkiff, 286 S.W. 20; State v. Frank Midkiff, 278 S.W. 681.]
The Attorney-General in his brief makes this statement: "There is very little evidence, if any, to implicate the defendant in the murder of John Green except the testmony of Walter Houck, who turned State's evidence, and the defendant's own confession at the trial of Delbert Midkiff."
I. Objection was made and exception saved to the admission in evidence of the statements of Frank Midkiff as he went around in Jackson getting his gang together. The conversations mentioned above with Egger, Sanders and Houck, all were at a time when the defendant was not present. Frank Midkiff did not say what his purpose was. He was only going to "get some easy money." Assuming that those with whom he talked knew he invited them to join in some unlawful enterprise, there was nothing in the evidence to connect the defendant at that time with any knowledge of the expedition or with those conversations. Nobody had seen him associated with the other parties. There was some evidence that about the time Frank Midkiff spoke to John Green, advising him to go home, he also spoke to the defendant. The witness who related this said that the defendant was not near enough to hear the conversation between Frank Midkiff and Green. If he had been it would have meant nothing so far as his knowledge of Frank's purpose was concerned. Not a syllable of testimony was offered to show what Frank said to the defendant, or to show that his conversation was different from what he might have said to any other person passing along the street. It occurred before Frank had his conversations with the others about going to get some easy money. The first appearance of the defendant with the gang, according to the testimony of Houck, was when they got in Biddy's car to start for Green's home. Assuming that a conspiracy was hatched while Frank Midkiff was gathering his crowd together, there is no evidence whatever that the defendant knew anything about it or was a party to it, until he got into the car later. So evidence of those conversations and the acts of Frank Midkiff were incompetent and should have been excluded.
One Sherman Haupt was permitted to testify over the objection of the defendant, that he was in the hardware business and two white men came into his store on the evening of August 5, 1922, and asked to buy some shells. He didn't know who the men were and could not identify them. The defendant failed to save the exception to this evidence, but on a retrial it should not be admitted.
II. The defendant made a confession and was introduced by the State as a witness in the Delbert Midkiff case. That confession was admitted in evidence over the objection and exception of the defendant. The defendant explained how he came to make that confession -- that he was promised minimum punishment and told that Walter Houck had confessed.
The court took evidence before admitting the confession. William Browning, the sheriff, offered by the State to show what occurred, said, in answer to the question of Mr. Hines, prosecuting attorney:
"You [meaning Mr. Hines] came over there and talked to John Biddy, Delbert Midkiff and Wilson White, and told them if they would go on and tell the truth about it you would recommend to the court the minimum punishment of ten years; neither one of them would accept it as you stated and then afterwards I met Addison up here and he wanted to talk to Wilson." . . .
Afterwards Wilson was separated from the other two and this occurred, according to Browning:
"Then you made the statement to Wilson again that if he would come on and tell the truth you would recommend the minimum punishment . ....
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